For a Life Beyond the Gallows

“If any of you would punish in the name of righteousness and lay the ax unto the evil tree, let him see to its roots.”

–           Kahlil Gibran in The Prophet – on Crime and Punishment (1923)

Gibran’s words sum up the essence of punishment as a reformative process. With the Supreme Court upholding the death sentence of Ajmal Kasab, the poignancy of these words resurfaces. When punishment is viewed as retribution and exemplary deterrence, the judgments can get as extreme (through “the rarest of rare” cases) as capital punishment. Such retribution poses some probing questions to the moral reasoning of any civilised society – can anything on earth justify cutting short a life in full tide? Can it undo any wrong? Can a society arrogate to itself the infallibility of human judgment to the extent that it loses respect for life? And to put the question in Gandhian terms – will an eye for an eye not make the whole world blind? The scale of moral horror that the actual act of executing a convict can produce was brilliantly articulated in an essay published in 1931.

From 1922 to1927, Eric Arthur Blair (better known to us as George Orwell) was serving as British Imperial Police officer in Burma. During this period, he witnessed the execution of a prisoner and narrated the incident in an essay titled ‘A Hanging’ published in Adelphi (a British literary magazine) in 1931. In his incisive narrative of the moments preceding the hanging, the traumatic journey to the gallows and then the actual hanging, Orwell humanises the agonising moments and dehumanises the punitive code of retributive justice. A particularly moving moment in the essay is when the convict stops to avoid a puddle while he is being forced to walk to to the gallows, Orwell writes:

“And once, in spite of the men who gripped him by each shoulder, he stepped slightly aside to avoid a puddle on the path. It is curious, but till that moment I had never realized what it means to destroy a healthy, conscious man. When I saw the prisoner step aside to avoid the puddle, I saw the mystery, the unspeakable wrongness, of cutting a life short when it is in full tide. This man was not dying, he was alive just as we were alive. All the organs of his body were working – bowels, digesting food, skin renewing itself, nails growing, tissues forming – all toiling away in solemn foolery. His nails would still be growing when he stood on the drop, when he was falling through the air with a tenth of a second to live. His eyes saw the yellow gravel and the grey walls, and his brain still remembered, foresaw, reasoned – reasoned even about puddles. He and we were a party of men walking together, seeing, hearing, feeling, understanding the same world; and in two minutes, with a sudden snap, one of us would be gone – one mind less, one world less.”

Interestingly, the “cutting short…when in full tide” imagery for expressing the moral outrage against capital punishment has been used in glorious intellectual traditions of ancient Greece too. In his work ‘The Story of Philosophy’, Will Durant has cited Plato’s narration of his master Socrates’ execution in which Plato describes it as “cutting a brain when it was in full tide”. Though talking of Socrates’ execution in the same breadth as that of a hardened terrorist might be too much to take for the hawks of capital punishment, there is more egalitarianism in the intrinsic value of life and equivalence in the possibilities that a live man has (howsoever diabolic might be his history).

So, can India hope to abolish capital punishment in the near future? In an interesting, coincidence, the day (August 29, 2012) Supreme Court upheld Kasab’s death sentence, The Times of India published an interview of former Chief Justice of the Delhi High Court, Justice AP Shah in which he advocated the idea that India should join countries which have abolished the death sentence. In law and practice, 130 out of the 192 UN member states have abolished capital punishment. Apart from the humanistic aspect, he also questioned the judicial rationality of continuing with the death sentence, as he asserted, “It’s time we accepted that capital punishment neither has any deterrent effect, nor can it be counted as a preventive measure”. Justice Shah’s assertion is a welcome counter to the flawed “detterent effect” logic that former Chief Jusice of India, KG Balakrishnan gave in his defence of the death penalty in August 2010.

It can be safely observed that the Supreme Court of India has also been very cautious, and almost hesitant, in punishing even heinous crimes with the death sentence. It should be remembered that in a 1985 ruling, the Supreme Court declared execution by public hanging unconstitutional (raising the pitch, Udhhav Thackeray has asked for Kasab’s public hanging), and went on to observe: “a barbaric crime does not have to be met with a barbaric penalty”. Evolving through a number of judgments, the apex court has restricted the awarding of the death penalty to the “rarest of rare cases”. The question is: why should not the “the rarest” now make way for total disappearance?

The global campaign against the death penalty has gained momentum in the last two decades. Britain abolished the death penalty in 1965 and since then has been at the vanguard of a campaign against capital punishment. It’s noteworthy that except Belarus, all European countries have done away with the death penalty – abolitions and moratorium on executions have worked well. Russia has been effective with the latter and some countries are taking first softening steps by either making executions very rare, or by removing the barbaric modes of execution (as in China, the shift is from firing squads to lethal injection). Yet these small steps seem too little and a lot more needs to be done for achieving global abolition of death penalty.

In recent times, a section of the Indian media has also sought to join the campaign against capital punishment. In this context, particular mention has to be made of The Hindu’s editorial campaign against capital punishment, occasioned by what then Editor-in-Chief, N Ram wrote in a note as: “Scheduled execution, now stayed, of three convicts in the Rajiv Gandhi assassination case and the impending execution of other convicts on death row” (The Hindu, August 31, 2011). In an editorial comment (Abolish The Death Penalty, October 25, 2010), the paper had concluded: “Vigorous steps need to be taken to lay out a global consensus on the elimination of the death penalty from the statute books of nations.”

It is high time we make way for a jurisprudence which is more life-centric and is filled with that extra drop of the Shakespearean “milk of human kindness”. It should view punishment as a reformative process and not as a retributive one, and it should accommodate for the possibilities of a life gone wrong. India needs to soon join the comity of states that are committed to abolition of the death penalty. How about achieving that by October 10 this year? October 10 is the World Day Against the Death Penalty.

Image Source: [http://www.flickr.com/photos/wiros/3296816465/]